128 Ga. 690 | Ga. | 1907
The solution of the case presented by this record depends upon the character of the estate, whether fee simple or for life only, which Thomas Wesley Smith took in the lands devised in the third item of his father’s will. If no other considerations entered into the construction of this item beyond defining the plain and unambiguous language of the testator according to its obvious legal effect, no difficulty would be experienced in declaring the nature of the estate therein created. With almost technical precision the testator devised to his wife and son, Thomas Wesley, an estate for their joint lives, with survivorship, and after the death of the survivor a reversion of the land devised, to his estate, to be distributed among his heirs at law living at the time of the death of the survivor. But the plaintiff in error insists that the eighth item of the will is irreconcilable with item three, and that the life-estate created in the third item became absolute under the eighth item, and vested in Thomas Wesley Smith an absolute fee-simple estate upon the death of his mother. The Civil Code, §3346, provides that “Where there are inconsistent provisions in the same will, the latter must prevail.” Before a posterior provision shall be given the effect of nullifying a devise previous^ made in the will, the conflict between the two provisions must be irreconcilable. A subsequent provision which diminishes a precedent gift, as by cutting down to a life-estate a prior devise, is not so far conflicting and irreconcilable with that gift as to be, in a legal sense, repugnant thereto. Broach v. Kitchens, 23 Ga. 515; Sheftall v. Roberts, 30. Ga. 453; Vaughn v. Howard, 75 Ga. 285. In these eases the language of the posterior clause reducing the estate was in express terms, and not in general language. When the words of the will in the first instance distinctly indicate an intent to make a clear gift, such gift is not to be cut down by any subsequent provision which is inferential, and which is not equally as distinct as the former. 30 Am. & Eng. Enc. L. (2d ed.) 687; 1
Plaintiff in error further contends that the testator discloses an intention, in the eighth and ninth items of his will, to make an equal distribution among his heirs at law; that the real purpose of the testator was to divide Ms estate into five equal parts, giving two to his wife and Thomas Wesley, and to the three other children each an equal share. We gather from the whole will that the testamentary scheme did not comprehend equality in the estates devised. A construction which would enlarge the estate granted to Thomas Wesley in the third item, into a fee simple, would destroy that equality for which the plaintiff in error so earnestly contends, since Thomas Wesley, if he should survive Ms mother, would be given a much larger share than would pass to the other children under the terms of the will. It would seem that the
Judgment affirmed.